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Tuesday, January 20, 2009

Federal Judge Lets Reporter Live Blog Trial

By Debra Cassens Weiss, Courtesy of ABA Journal

U.S. District Judge Mark Bennett of Sioux City, Iowa, is a tech-savvy judge in a district with high-tech courtrooms. When he was a practicing lawyer in a small law firm, Bennett was willing to pay an “outrageously expensive” amount to make his office possibly the first in the state to have desktop computers. He believes he was probably the first federal judge to have an e-mail address. And he reads blogs on a daily basis, such as Sentencing Law and Policy Blog.

So Bennett was favorably inclined when a reporter for the Cedar Rapids Gazette e-mailed him to ask if she could use a laptop computer to cover the tax fraud trial of a local landlord by posting live courtroom updates. Bennett took a few days to think it over, and responded that he would allow it, provided that the reporter, Trish Mehaffey, sat farther back in the courtroom where her typing would not be a distraction.

“I thought the public’s right to know what goes on in federal court and the transparency that would be given the proceedings by live-blogging outweighed any potential prejudice to the defendant,” Bennett told the ABA Journal.

The landlord, Robert Miell, was convicted of filing false tax returns as part of an insurance fraud scheme, according to Mehaffey’s stories in the Gazette. Mehaffey carried news of the verdict through an interactive live blog and brief updates on Twitter.com.

Before trial began on the tax fraud charges, Miell pleaded guilty to 18 counts of mail fraud. The charges involved allegations he collected insurance checks based on false claims and sent invoices to former tenants with fraudulent repair costs, according to the Gazette.

The live blog allowed readers to comment during the trial and Mehaffey to answer their questions. Mehaffey says she got around 500 comments, choosing which ones to post. “Why is it that the slimiest ones figure out a way to cover their backsides?” one reader asked. Ignoring the “slimiest ones” characterization, Mehaffey replied: “Thanks for using backsides :)”

Mehaffey tells the ABA Journal it was the first time she posted live blog updates from a trial. She notes that a columnist at her newspaper has also done some courtroom blogging, covering arguments in the state supreme court last month in a challenge to the Iowa law banning same-sex marriage.

“Times are changing, and it’s all about the digital industry,” Mehaffey says of courtroom blogging. “It’s a way for us to meet the demands of our readers.”

Mehaffey says she’s heard of several reporters allowed to blog from state court proceedings. A few federal judges besides Bennett have also allowed live-blogging of trials.

Accredited journalists were allowed to use laptops and other electronic devices to cover the trial of five men convicted of plotting to attack Fort Dix, according to a court website listing the rules. The media representatives received a password giving them wireless Internet access in the courtroom.

Bloggers were allowed to use computers to cover the perjury and obstruction of justice trial of I. Lewis “Scooter” Libby, but they had to work from an overflow room where the trial was broadcast on closed-circuit TV, according to Gary Hengstler, director of the National Center for Courts and Media.

There are some critics of the practice, however. Miell’s defense lawyer, F. Montgomery Brown of West Des Moines, is one of them.

Montgomery didn’t have a problem with any courtroom distractions caused by Mehaffey’s blogging. In fact, he said he was unaware the trial was being covered live until the judge mentioned it in passing. “There wasn’t any disruption, from my position,” he told the ABA Journal.

But Brown is worried about problems that could arise if jurors should access the blog outside the courtroom. Brown read Mehaffey’s blog posts after the trial ended, and he thought they included the reporter’s subjective analysis of the trial. What if jurors ignore a judge’s warning not to access the Internet or read media accounts of the case? he asks. Cautioning that he was speaking generally and not about the Miell case, Brown said some jurors could be tempted.

“The issue as I see it,” he said, “is it puts … subjective analysis out into the media stream, and then it’s available at the discretion of the jurors if they want to violate any admonition to go out there and look for it.”

Bennett admits that he also checked out the blog, for a brief 10 seconds or less shortly after the trial started.

Asked if he would allow a reporter to post a live-blog account of another trial in his courtroom, Bennett said he would certainly entertain the idea. “It might depend on the case; it might depend on who’s making the request,” he says. Next time, though, he would likely raise the issue with the parties.

And Bennett says he’s probably going to suggest that the Northern District of Iowa develop a policy on courtroom blogging, “so it’s just not an ad hoc decision by me.”

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“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)